CASE OF KOÇ AND OTHERS v. TURKEY

SECOND SECTION

CASE OF KOÇ AND OTHERS v. TURKEY

(Application no. 35211/08)

JUDGMENT
 

STRASBOURG

13 July 2021

This judgment is final but it may be subject to editorial revision.

In the case of Koç and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Aleš Pejchal, President,
Branko Lubarda,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 35211/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Mr Aziz Mahmut Koç, Mr İhsan Koç and Mr Barış Yiğit (“the applicants”), on the various dates indicated in the appended table;

the decision to give notice to the Turkish Government (“the Government”) of the complaints under (i) Article 5 § 3 of the Convention concerning the length of the detention in police custody of the applicant Barış Yiğit (“third applicant”), (ii) Article 5 § 3 concerning the length of the applicants’ pre-trial detention, (iii) Article 5 § 4 concerning the non-communication to the applicants of the public prosecutor’s written opinion and restrictions on access to the investigation file, (iv) Article 5 § 5 regarding the lack of a right to enforceable compensation, and (v) Articles 6 § 1 and 13 regarding the length of the criminal proceedings and the absence of any effective remedies to bring a complaint in that regard, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 22 June 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case mainly concerns the applicants’ arrest and pre-trial detention on suspicion of membership of a terrorist organisation, and the length of the criminal proceedings conducted against them in that respect.

THE FACTS

2.  The applicants were born in 1978, 1982 and 1992 respectively and were all detained in different prisons in Turkey at the time of lodging the present application. They were represented by Mr İ. Akmeşe, a lawyer practising in Istanbul.

3.  The Government were represented by their co-Agents, Ms Çağla Pınar Tansu Seçkin, Deputy to the Permanent Representative of the Republic of Turkey to the Council of Europe and Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On an unspecified date the Istanbul public prosecutor’s office initiated a criminal investigation against the applicants on suspicion of their membership of a terrorist organization, namely the PKK/KONGRA-GEL (Workers’ Party of Kurdistan/People’s Congress of Kurdistan), on the basis of intelligence suggesting their plans to carry out a bomb attack.

6.  On 1 March 2008 the Istanbul Assize Court decided to restrict access to the investigation file, pursuant to Article 153 § 2 of the Code of Criminal Procedure (the “CCP”).

7.  On 4 March 2008 the Istanbul Assize Court granted an authorisation for the tapping of the first applicant’s mobile telephone. According to the information in the case file, the surveillance of the first applicant’s telephone conversations revealed plans for a bomb attack to be carried out on 11 March 2008 in the Bahçelievler district of Istanbul.

8.  At 8.45 pm on 11 March 2008, the third applicant, who was a minor at the material time, was arrested at a public park in Bahçelievler and placed in detention in police custody. According to the arrest record, the third applicant had in his possession a plastic bag containing a bomb set-up at the time of his apprehension.

9.  On 13 March 2008 the Istanbul public prosecutor ordered the prolongation of the third applicant’s detention in police custody for twenty-four hours. The applicant and his father were informed of this prolongation, as well as of their right to object against it, which they did not use.

10.  The third applicant’s detention was further prolonged on 14 March 2008 for another twenty-four hours, which was similarly notified to the applicant and his father. There is, once again, no indication that an objection was lodged against the prolongation order.

11.  In the meantime, on 12 and 14 March 2008, respectively, the first and second applicants were arrested and taken into police custody. On 14 March 2008 they were interrogated at the anti-terror branch of the Istanbul police headquarters, in the presence of their lawyers, where they were asked detailed questions, in particular about their involvement in the bomb attack planned for 11 March 2008.

12.  On 15 March 2008 the applicants were questioned by the public prosecutor in the presence of their lawyers regarding mainly the bomb found in the third applicant’s possession and their participation in the preparation of the planned attack. According to the interrogation records -signed by both the applicants and their lawyers -, the relevant records obtained through the surveillance of the first applicant’s phone were read out to the first and second applicants, who acknowledged their content. The interrogation records further indicate that the third applicant admitted to having planned the attack, although he claimed that he was not planning to execute it.

13.  Later on the same day, the applicants were taken before the Istanbul Assize Court, where they reiterated the statements previously made to the public prosecutor. The Istanbul Assize Court ordered the applicants’ pre-trial detention. On 21 March 2008 the applicants objected against that order and requested their release.

14.  On an unspecified date, the Istanbul public prosecutor submitted his written opinion to the Istanbul Assize Court against the applicants’ objection. On 26 March 2008 the Istanbul Assize Court dismissed the applicants’ objection based on the public prosecutor’s written opinion, which was never communicated to the applicants.

15.  In the meantime, on 21 March 2008 the applicants lodged an objection against the decision of 1 March 2008 restricting their access to the case file. The applicants stressed that unlike them, the public prosecutor had been able to examine the contents of the case file and to prepare and submit his written opinion against their request for release on the basis of the file. The applicants’ objection was dismissed by the Istanbul Assize Court on 25 March 2008.

16.  On 13 May 2008 the Istanbul public prosecutor filed a bill of indictment against the applicants, accusing them, inter alia, of membership of a terrorist organisation and illegal manufacturing and possession of explosives.

17.  On 18 November 2009 the Istanbul Assize Court ordered the third applicant’s release from pre-trial detention, having particular regard to his age at the material time.

18.  On 26 April 2010 the Istanbul Assize Court decided to release the second applicant, having regard to the time that he had already spent in pre-trial detention.

19.  On 10 October 2012 the Istanbul Assize Court convicted the first applicant as charged, but ordered the second applicant’s acquittal.

20.  On 26 March 2014 the Court of Cassation upheld the second applicant’s acquittal, yet it partially overturned the Istanbul Assize Court’s decision insofar as it concerned the first applicant and remitted his case to the first-instance court.

21.  On 25 September 2014 the Istanbul Assize Court decided to acquit the first applicant. This judgment became final on 3 October 2014.

22.  On 8 June 2016 the Bakırköy Juvenile Assize Court convicted the third applicant, inter alia, of membership of a terrorist organization and illegal possession of explosives. According to the latest information in the case file, the criminal proceedings against him are still bending before the Court of Cassation.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

23.  A description of the relevant domestic law and practice can be found in Altınok v. Turkey, no. 31610/08, §§ 28-32, 29 November 2011; Demir v. Turkey (dec.), no. 51770/07, §§ 13, 16 October 2012; Turgut and Others v. Turkey (dec.), no. 4860/09, §§ 19-26, 26 March 2013; and Mustafa Avcı v. Turkey, no. 39322/12, § 34, 23 May 2017.

THE LAWTHE GOVERNMENT’S PRELIMINARY OBJECTION

24.  The Government submitted that the facts and the applicants’ complaints in the application form had not been in accordance with the Rules of Court as they had not been submitted succinctly, consisting of twenty-two pages in total. They further noted that the applicants had failed to submit a brief summary of the facts of the case and their complaints, as they should have done under Rule 47 of the Rules of Court and paragraph 11 of the Practice Directions. They therefore asked the Court to reject the application for failing to meet the requirements of Rule 47 in the version that was in force until 1 January 2014.

25.  The Court reiterates that it has already examined and dismissed that objection when it was made by the respondent Government in other cases (see, for instance, Işıkırık v. Turkey, no. 41226/09, § 38 and 39, 14 November 2017, and the cases cited therein). It finds no reason to depart from that conclusion in the present case. The Government’s argument on this point should therefore be rejected.ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

26.  The third applicant complained under Article 5 § 3 of the Convention of the length of his detention in police custody. The applicants further complained under the same provision that the length of their pre-trial detention had been excessive.Complaint concerning the length of the third applicant’s detention in police custody

27.  The Government argued that this complaint should be declared inadmissible for non-exhaustion of domestic remedies, as the third applicant had failed to lodge an objection against the prolongation of his detention in police custody and to request his release, despite having been reminded of that right (see paragraphs 9 and 10 above).

28.  The third applicant maintained that his detention in police custody had violated Article 5 § 3 of the Convention, but did not respond to the Government’s argument regarding his alleged failure to exhaust the available domestic remedy in respect of that complaint.

29.  The Court observes that it was open to the applicant to lodge an objection against the prolongation of his detention in police custody pursuant Article 91 § 5 of the CCP and to request his release, which he has failed to do (see, for instance, Mustafa Avcı v. Turkey, no. 39322/12, §§ 34 and 63, 23 May 2017, and Mehmet Hasan Altan v. Turkey, no. 13237/17, § 70, 20 March 2018). Nor has he provided an explanation as to why he should be absolved from the obligation to exhaust that remedy. In these circumstances, the Court allows the Government’s objection and rejects the third applicant’s complaint under this head for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention (see Mustafa Avcı, cited above, §§ 63-65 and § 67).Complaint concerning the length of the applicants’ pre-trial detention

30.  The Government asked the Court to reject this complaint for non‑exhaustion of domestic remedies. In this respect, they submitted that the applicants should have availed themselves of the compensation remedy provided under Article 141 of the CCP.

31.  The applicants maintained their complaint without, however, responding to the Government’s plea on non‑exhaustion.

32.  The Court notes at the outset that the applicants’ complaint before the Court relates solely to the length of their pre-trial detention, and does not entail an allegation concerning the insufficiency of the grounds given to justify the detention (see, a contrario, Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 213-214, 22 December 2020). It further notes that similar complaints have been declared inadmissible in the past for non‑exhaustion of domestic remedies (see, for instance, Demir v. Turkey  (dec.), no. 51770/07, §§ 22-26, 16 October 2012; A.Ş. v. Turkey, no. 58271/10, §§ 92-95, 13 September 2016; Yıldız v. Turkey (dec.), no. 42745/09, § 27, 11 October 2016; Özel v. Turkey (dec.) [Committee], no. 29028/09, §§ 14-21, 22 January 2019; and Kartal v. Turkey (dec.) [Committee], no. 679/08, §§ 15-21, 7 July 2020).

33.  The Court sees no reason to depart from its findings in the above-noted cases. Accordingly, it upholds the Government’s preliminary objection and concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

34.  The applicants complained under Article 5 § 4 of the Convention that the proceedings reviewing their pre-trial detention had not been truly adversarial and had breached the principle of equality of arms. They argued in this connection that (i) the objection that they had lodged against their pre-trial detention was dismissed by the Istanbul Assize Court on the basis of the public prosecutor’s written opinion, which had not been communicated to them or their lawyer, and that (ii) the public prosecutor had been able to consult the investigation file when preparing his opinion, whereas their access to the file was restricted until the filing of the bill of indictment.Complaint concerning the non-communication of the public prosecutor’s opinion

35.  The Government stated that they were aware of the Court’s relevant case-law under Article 5 § 4 of the Convention and referred in particular to the Court’s judgment in the case of Altınok v. Turkey, no. 31610/08, 29 November 2011.

36.  The applicants maintained their complaints and argued that the non-communication of the public prosecutor’s opinion had amounted to a violation of Article 5 § 4 in the light of the Court’s settled case-law on this matter.

37.  The Court notes that the present complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

38.  The Court further notes, as acknowledged by the Government, that the present complaint raises issues similar to those examined in the case of Altınok (cited above, §§ 57-61), where it found a violation of Article 5 § 4 of the Convention. In its view, there is no reason to depart from that finding.

39.  The Court considers accordingly that there has been a violation of Article 5 § 4 of the Convention in the present case on account of the non‑communication of the public prosecutor’s opinion to the applicants or their representatives in the context of the examination of their objection to their pre-trial detention.Complaint concerning the restriction of access to the investigation file

40.  Having regard to its finding of a violation in the preceding paragraph, the Court does not consider it necessary to further examine the admissibility or merits of the applicants’ remaining complaint under Article 5 § 4.ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

41.  The applicants complained under Article 5 § 5 that they had had no right to compensation under domestic law in respect of the violation of their rights under Article 5.

42.  The Government stated that they were aware of the Court’s well‑established case-law under Article 5 § 5 and that, therefore, they would leave the assessment of the applicants’ complaint to the Court’s discretion.

43.  The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

44.  The Court refers to the general principles set out in its case-law regarding Article 5 § 5 of the Convention, and reiterates in particular that the right to compensation under that provision presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see, for instance, Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012).

45.  The Court has found above that the applicants’ right to have an effective remedy to challenge the lawfulness of their pre-trial detention had been infringed on account of the non‑communication of the public prosecutor’s written opinion issued in respect of their request for release (see paragraph 39 above). It also recalls that it has examined a similar issue in the case of Altınok (cited above, § 67), and has found a violation of Article 5 § 5 of the Convention. The Court sees no reason to depart from that finding in the present case (see also, Ceviz v. Turkey, no. 8140/08, §§ 58-60, 17 July 2012; Ruşen Bayar v. Turkey, no. 25253/08, § 82, 19 February 2019; and Okuyucu v. Turkey [Committee], no. 62657/12, §§ 24-29, 19 January 2021).

46.  It therefore follows that there has been a violation of Article 5 § 5 of the Convention, taken in conjunction with Article 5 § 4.ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

47.  The applicants complained that the length of the criminal proceedings against them did not comply with the “reasonable time” requirement of Article 6 § 1 of the Convention. They further submitted under Article 13 that they had no effective remedy in domestic law whereby they could challenge the length of the criminal proceedings in question.

48.  The Government noted that pursuant to Law no. 6384, a new Compensation Commission had been established to deal with complaints concerning, inter alia, the length of proceedings, which remedy the applicants had failed to exhaust.

49.  The Court recalls that it has already examined and declared inadmissible similar complaints for non-exhaustion of domestic remedies (see, for instance, Turgut and others, v. Turkey (dec.), no. 4860/09, §§ 19‑26 and 56; Bacak and Others v. Turkey (dec.), no. 18904/09 and 44 others, §§ 14 and 15, 11 February 2014; Kılıçöz v. Turkey (dec.), no. 26662/05, §§  12-16, 15 April 2014; İnan v. Turkey (dec.), no. 14129/11, §§ 42-44, 4  November 2014; and Düz v. Turkey (dec.) [Committee], no. 53388/11, §§  27 and 28, 29 May 2018). It sees no reason to come to a different conclusion in the present case.

50.  It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

51.  As regards the related complaint raised under Article 13 of the Convention, the Court considers, having regard to its finding under Article 6 § 1, that the Compensation Commission established by Law no. 6384 provides an effective remedy within the meaning of Article 13 in respect of complaints concerning the length of proceedings (see, for instance, Haçikoğlu and others v. Turkey (dec.), no. 21786/04, 8 April 2014, and İnan, cited above, §§ 45 and 46).

52.  It follows that the applicants’ complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

53.  The applicants claimed 95,000 euros (EUR), jointly, in respect of non-pecuniary damage.

54.  The Government contested the applicants’ claims as being excessive and unsubstantiated.

55.  Having regard to all the elements before it and to its practice in similar cases, the Court considers that the finding of a violation in the present case constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants (see, for instance, Ceviz v. Turkey, cited above, § 64, and Okuyucu, cited above, § 31).

56.  The applicants also claimed 12,744 Turkish liras (TRY) (approximately EUR 5,505 at the material time) for legal fees, which corresponded to the minimum amount for representation before international organs as indicated in the Union of Turkish Bar Associations’ scale of fees for 2012. They further requested TRY 800 (approximately EUR 345 at the material time) in respect of expenses incurred before the Court, without submitting any documentary proof such as invoices in support of their claims.

57.  The Government contested these claims.

58.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicants did no more than refer to the Union of Turkish Bar Associations’ scale of fees in respect of their claim for legal fees and failed to submit supporting documents to substantiate any of their claims. In those circumstances, the Court makes no award in respect of the costs and expenses claimed by the applicants (see, for instance, Parmak and Bakır v. Turkey, nos. 22429/07 and 25195/07, § 108, 3 December 2019).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible in so far as it relates to the non-communication of the public prosecutor’s opinion under Article 5 § 4 of Convention, and the alleged lack of an enforceable right to compensation under Article 5 § 5 of the Convention taken in conjunction with paragraph 4 of the same article;Holds that there is no need to examine the admissibility or the merits of the complaint under Article 5 § 4 of the Convention concerning the restriction of the applicants’ access to the investigation file;Declares the remainder of the application inadmissible;Holds that there has been a violation of Article 5 § 4 of the Convention on account of the non-communication of the public prosecutor’s opinion;Holds that there has been a violation of Article 5 § 5 of the Convention;Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;Dismisses the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Hasan Bakırcı Aleš Pejchal
Deputy RegistrarPresident

APPENDIX

List of applicants:

Application no. 35211/08

List of applicants

No.

Applicant’s Name

Year of birth/registration

Nationality

1.

Aziz Mahmut KOÇ

1978

Turkish

2.

İhsan KOÇ

1982

Turkish

3.

Barış YİĞİT

1992

Turkish

 

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